Copyright Infringement of Tattoos

In an interesting Hollywood movie side-drama consistent with Hollywood theatrics, the creators of the upcoming Hangover II movie are finding themselves fighting to defend themselves against a tattoo artist seeking an injunction over the unauthorized use of a tattoo. The tattoo artist, Victor Whitmill, created an original tattoo for boxer Mike Tyson, who appears in both “Hangover” films.  In response to the unauthorized use of Mr. Whitmill’s artwork, he filed a copyright infringement suit seeking an injunction and damages for the unauthorized use of his tattoo in the Hangover II movie.

In general, the lawsuit is based upon the depiction by Warner Bros. of Mr. Whitmill’s artwork, the tattoo, on actor Ed Helms.  The suit does not name Mr. Tyson’s because Mr. Tyson obtained an agreement with the artist allowing Mr. Tyson to appear in movies with the tattoo.  Warner Bros. did not obtain an agreement which is why the suit was filed.  During settlement negotiations, apparently Mr. Whitmill asked for a $30 million settlement.

The artist lost the the preliminary injunction hearing because issuing an injunction against the film’s release would inflict irreparable harm on the studio, which has spent more than $80 million to market the film.  So the film will be released on schedule.  However, the judge’s ruling, denying the injunction, is allowing the case to proceed because Mr. Whitmill demonstrated a ‘strong likelihood of success’ on the merits of his copyright infringement lawsuit.

According to Mr. Whitmill’s attorney, “Judge Perry recognized copyright law protects tattoos and that Warner Bros. had no permission to use Mr. Whitmill’s artwork in the movie.”

This is quite a change for Warner Bros., a company known for making copyrighted works and for being an institution for the commercial exploitation of these works of art, such as movies, records, books, plays, etc.. Why didn’t Warner Bros.  obtain an agreement to use the artwork in the movie?  Clearly Warner Bros. is not a novice copyright owner, unfamiliar with complexity of copyright law.  Most likely this was simply an oversight by Warner Bros.  But copyright law is not kind to oversights.  Copyright law, as some may say, “is a harsh mistress.”  Copyright law holds one strictly liable for unauthorized use of a copyright work.  In general, if one violates the rights of an artist, one is liable for copyright infringement.  Simple.

This case, while seemingly clear from a liability standpoint provides an intriguing perspective.  Absent an agreement or a work-for-hire situation, tattoo artists clearly have rights to their artwork.  Most artwork is displayed on walls, in books or on radios.  Tattoos are not, they are displayed on persons.  Any image of a person may include an image of the tattoo and anyone obtaining a copy of the tattoo may find themselves liable for copyright infringement over the picture related to the commercial/public display of the tattoo.  For example, if you have a bunch of pictures on Facebook with your tattoo could they sue you?  While model releases are not uncommon for pictures involving people, the possibility of a tattoo provides an additional layer of complexity.  Not only is a model release possibly required, but also a tattoo artist release may be required if the picture depicts the tattoo.  Obviously the best time to get the tattoo release would be at the time of the tattoo.

In addition, tattoo artists may also have so called moral rights under copyright law, which means the artist has a right to attribution and to the integrity of the work.  If applied in a traditional sense, this would mean that the tattoo artist has a say in the surroundings in which the work is displayed.  If the work is displayed in a way which is not flattering, the tattoo artist may have a right to limit the display of the work.  Exactly how this would work out in real life is unclear.  For example, does this mean that if you get a little less physically attractive, the tattoo artist may have a right to remove the tattoo…. Interesting.

If you have the urge to get a tattoo, feel free to contact one of our attorney’s to go with you and negotiate that license agreement in advance. Who knows, maybe the artist would be willing to tattoo the agreement as well.